Sunday, 17 June 2007

The case of Genarlow Wilson shows clearly some of the differences between what is legal and what is right.

You would think this is an obvious distinction, but in reading debate on this case recently I was struck at how frequently people failed to make that distinction, or even deliberately sought to obscure it. It is a problem afflicting some of the comments from both sides of the arguments.

Background on the Genarlow Wilson case

Genarlow Wilson was convicted of aggravated sexual molestation for being given a blow job at a rather sordid New Year’s Eve party in 2003/2004. He was 17, she was 15. Wilson was sentenced to 10 years, with no possibility of parole. If the case had involved sexual penetration, then it would have been only a misdemeanor, worth a year prison time, because the two teenagers are so close in age to each other. But because the case involved oral sex, this provision did not apply. Wilson was convicted of a felony, as if he was an adult molesting a child. The loophole in law was closed as a direct result of the case; but not retroactively, so Wilson remained in jail.

The case recently received a new burst of publicity, when the felony conviction was overturned and replaced with a misdemeanor, and an order for Genarlow's release based on time served. There was an immediate appeal from the Attorney General, and Genarlow remains in jail for the time being. It seems likely that Wilson will be free on bond within a few weeks, but that the appeals process will grind on for months. I am hopeful for a satisfactory outcome eventually.

It is relevant also that there was another girl with whom Wilson and others had conventional sex. This girl was 17, and the following morning, not remembering all that had happened, she brought rape charges. This was why matters came to trial at all. The kids had been using a video camera at the party, and this showed clearly that she was an equal partner with the boys, aware and acquiescent in all that occurred. The trial found, correctly, that there was no rape involved. However, that video also showed the oral sex with the younger girl, which became the real basis for a conviction.

In the meantime, I have been reflecting more generally on the difference between law and ethics. The state needs laws to give guidance on how to deal with matters when it is required to step in a deal with them. But laws are often more inflexible than is appropriate -- more inflexible than is right.

The Genarlow Wilson case is a convenient illustration, to put into sharp relief some general issues with law and ethics.

Should the law be involved at all?

In many cases, involvement of the state to deal with disputes or behaviour is a symptom of the failure of other avenues; or worse, of an appropriate imposition over the head of other avenues. This applies especially with children and teenagers.

Families can and should be able to deal with many matters that would be quite serious crimes if taken up by the state. And sometimes families can't deal with them, and then the state needs to be able to step in and deal with things. In a perfect world, inappropriate consensual sexual activity between teenagers would usually be dealt with by their families. It's really hard; but if it can work that way, it is (IMO) usually the best. It becomes less and less of an option as children get older, of course. In this case, the rape charges from the older girl did justify legal intervention, although it was soon clear that there was no good basis there for a conviction.

A common refrain from those who support Wilson's conviction is that there could be no consent, because the girl was only 15. (It was just 3 weeks from her 16th birthday.)

The state defines a line in sand where consent can be given for sexual activity. This is a legal fiction. It is an important fiction; in place for the protection of children, against those who would take advantage of their naivety, powerlessness and inexperience. But it is a fiction nevertheless – as anyone with a three year old will understand. Parents know the difference involved when giving a bath to a child with and without their consent.

Children give and withhold consent to all kinds of things. The effect of legal definitions is that you may not take any account of such consent in law. This is for their protection, but under some circumstances it can contribute to an injustice.

The laws of consent are especially important for the protection of children from pedophiles – adults with a pathological sexual attraction to children. Unfortunately, the way the line in the sand was drawn for this case; it handled pedophilia in exactly the same way as perfectly normal sexual drives in young people. A young woman of nearly 16 is biologically sexually mature. A young man of 17 is pretty much at his sexual prime. Sexual attraction between them is normal and natural, without a bit of pedophilia involved. That does not mean sexual activity is ethical! But it does mean that there is a difference between predatory behaviour of an adult with children, and a relationship between teenagers around about the dividing lines chosen by the state.

This is particularly ridiculous in Genarlow's case, because even on release he would have been registered as a "sex offender", and would be prohibited from contact with his own young sister. That's the law, and it is insane. It is actively and dreadfully wrong.

A felon convicted of crimes of property and rightfully serving hard time for such crimes is still a human person, worthy of support and care even as he serves out his rightful sentence. If he is fortunate, such a felon will continue to have the love and support of family, with regular visits and the hope that on release his family can help the hard process of returning to society. A sex offender, on the other hand, may be legally prohibited from meeting with young children of the family. Sometimes this is right and proper. At other times -- like this one -- it is insane.

Further on consent. The acts for which Genarlow was convicted were initiated by a fifteen year old girl. This is apparently recognized by everyone involved. Genarlow should certainly not have let them occur – that is, he should not have consented. But to worry about "consent" from the girl is gives the wrong impressive. She did not merely consent; she was actively and deliberately driving events, of her own volition.

A girl actively sought to give oral sex to a boy she knew, and he was the one who gave consent. He should not have done so; but the way in which legal terms are applied is actively misleading as a guide to the events themselves.

Plea bargains and deals

Another way in which what is legal differs from what is right is the whole matter of plea bargaining and dealing. Pragmatically, this is an important feature of an overloaded legal system. All kinds of legal fictions get agreed to for the sake of convenience and efficiency, and as a matter of hard calculation of payoffs for those involved.

In a plea bargain, someone can sometimes plead guilty to a lesser offense, even though in fact the crime itself is not well described by that offense at all. In doing so, the criminal decides to avoid the risk of conviction with harsher penalties, and the legal system avoids the costs of trial and the risk that a conviction may not actually result. There have been cases even when innocent people have pleaded guilty and been convicted of crimes, because the alternative was to fight a legal case for a much more serious crime that – because law is not perfect – they were not sufficiently confident of winning, or because the time and cost of defense was as bad as the consequences of conviction for the lesser crime.

This is relevant to this case, because in fact there were several teenagers who were convicted. All the others took plea bargains. Those convictions include convictions for a crime that never occurred; the alleged rape of the older girl.

Wilson chose to go to trial. It is still not yet clear whether or not this was a bad choice for him personally, but it was a case of Wilson standing up for what he felt was right. He was the only one of those charged with no prior legal record. And though he has suffered for his stand, some good things have resulted – such as a change to the laws to make them more ethically defensible than they were.

Mandatory sentencing

Some segments of society have been unhappy with how parole and sentencing issues have failed to be sufficiently strong. They have attempted to strengthen the force of law and reduce the capacity of human judges to adapt the consequences to circumstances, by placing very strong limits on parole and by insisting on harsh minimum sentences. In my opinion, this has entrenched and exacerbated the divide between what is legal and what is ethical.

About 2350 years ago, Aristotle in his Nicomachean Ethics noted that a problem with "laws" is that they are expressed as universal principles and so fail to account for inevitable exceptions. For real justice, it is important that there is the capacity for a judge or legislator to be able to deal with individual cases and exceptions by decree.

Mandatory and minimum sentencing laws are an attempt to limit a judge's ability to manage exceptional cases. They are conceived as a way of preventing corruption or an unjust leniency; but they also frequently contribute to an unjust harshness. In my opinion, that has certainly occurred here. The crime of which Genarlow was convicted has a harsh minimum sentence of ten years, and parole is explicitly disallowed.

In Georgia, the problem is worse than usual, because the governor apparently does not have authority under the constitution to grant a pardon. This is rather vested in a constitutionally mandated State Board of Pardons and Paroles; but their guidelines seem to make pardon in this case almost impossible.

Laws change

Another important difference between what is legal and what is right is that laws change. They can change very suddenly; far faster than ethics even if you allow for ethics as a subjective and relative quality.

In this case, the manifest injustice of the laws as they have applied to Genarlow has directly resulted in a change to the law. But the change was not made retroactive.

The law under which Genarlow was convicted did recognize the perfectly obvious fact that sex between teenagers of similar ages is in a totally different category to sex between an adult and a child. If the age difference is three years or less, the law makes sex a misdemeanor rather than a felony. However, the archaic expression of the law fails to make that important distinction for oral sex, with the inane and manifestly unjust result that if Genarlow had penetrated the girl, he would have had a far more lenient sentence, and have been out of jail long ago. But what happened is that she sucked him; and so for that he gets a felony conviction, sex offender status, a sentence ten times harsher, and no possibility for parole.

This underlines the huge difference between what is legal and what is right. The law has since been fixed. But the action of that law has not.

There are constitutional issues also with passing laws with retroactive effect. Retroactive or ex post facto laws are prohibited by the constitution. The full extent of how this works is not always clear. The intent is invariably to protect individuals from prosecution for acts that were not illegal when committed, and also from heavier penalties than those permitted at the time an offence was committed. However, the wording of restrictions may also be taken to prevent reduction in penalties.

Senate Bill 37 was introduced in the 2007 Georgia legislative session, which would have allowed Wilson's sentence to be reduced by the courts, but the session was adjourned in April, before the bill could be considered. An account is given in a press release by one of the supporters of the bill, Senator Emanuel Jones.

Weird arguments

Here are some profoundly callous or stupid arguments I have seen raised in discussions on this issue.

"He should have considered the consequences before doing the crime." What a thoughtless response. The consequences came as a horrible surprise for those concerned. The consequences were an unintended counterintuitive loophole in the law. It's possible, though we can't tell now, that those at the party refrained from sex with the younger girl precisely because they knew sex with a minor was particularly dangerous. But the loophole meant that by letting her give them a blow job rather than by having conventional sex with her, the law treated the matter as a felony involving an adult and a child, rather than as "Romeo and Juliette" sex between teenagers of similar ages.

"She can't give consent." Don't be stupid; of course she can. Furthermore, if she had given consent to actual sex the law would have recognized it and taken it into account. If it happened today, the law would recognize her consent and take it into account. It was a loophole in the law that mean this particular act was treated as adult abuse of a child, rather than what it really was – consensual acts between two teenagers with only a small age difference.

"She was pressured, drugged, forced, whatever." No, she wasn't. She was not drinking heavily; some reports suggest she was not drinking at all. (I'm skeptical!) But she initiated the acts, and showed no signs of trauma or coercion. A fifteen year old is more than capable of choosing of her own volition to precipitate such acts, and all the evidence, all the testimony, indicates that this is precisely what she did.

"He should have taken the plea deal." There were very good reasons for not taking the plea deal. The major charge, of rape, was something he definitely did not do. He had no prior record, and a plea deal would have branded him a sex offender unable even to live with his own little sister. This argument is a contemptible excuse for ignoring a plain injustice.

"But what he did was wrong." I agree; and so does he. This is a red herring to the point at issue.

"What if you were the girl's parent?" What is right and just is not up to the parents. But if it matters, neither the girl nor her mother pushed for prosecution. They also have declared that the result is grossly excessive.

"We are a nation of laws." The person who said this to me even followed up by "not a nation of men". This kind of elevation of laws to be beyond question or revision or correction is naked evil. A nation is a nation of laws and of people, and when laws are unjust the people deal with it, if they have a shred of decency.

"You can't make a retroactive law." Try, damn your eyes. This kind of thing is not what the constitutional prohibition of retroactive law was intended to prevent. I am sure a well chosen set of rules for sentencing and appeals would fix the problem with no constitutional issue. You have to want to fix it.

"It's up to the prosecutor." This may be true; so put as much pressure on the prosecutor as humanly possible.

There have been some invalid claims on the other side as well.

"The governor should pardon him." I don't think the governor in Georgia has that power. It was removed from the governor and vested in a State Board of Pardons and Paroles. They have a constitutional power to pardon, I think; but it would violate their current working guidelines.

"The Attorney General should be impeached for appealing against Genarlow's release." There has been widespread anger at the Attorney General's appeal. I am suspending judgment on that, for the time being. His objection seems well founded. He has said that he will not oppose Genarlow's release on bond in July while the appeals proceed. My major concern is the sex offender registration issue. I think the authorities need to find some way to ensure that Genarlow, who is now 21, is able to return to live with his mother and sister as the appeal process proceeds. This is certainly the safest for society and for Genarlow. By all means vote for a different guy next time, however, if there is a better prospect.

"Genarlow did nothing wrong." I disagree, so does Genarlow. Some people feel that there's nothing wrong with teenagers and consensual sex. I was struck by a recent report noting that the girl involved, who is unnamed and should remain unnamed, is now nineteen; a single mother with a two year old child. Teenagers are not good at thinking through consequences, and it is still an ethical good to apply some active constraints beyond what is applied for adults, and for others to have additional responsibilities not to acquiesce in sex with a minor however freely offered.

In my opinion, the Christian church bears a large share of responsibility for fostering the climate of fear and malice that has inhibited the capacity of the legal system to handle matters with justice and fairness. Mandatory sentencing, removing scope for parole, limited avenues of appeal, sweeping obligatory sex offender registrations, tough on crime grandstanding; these things conspire to make the law less just, less able to find a way to what is right. I know that this is not a universal; and that many Christians speaking up for the justice and fairness. The tragedy is that they so often seem to be a minority in the church, and that the church in the USA in particular has become profoundly compromised by allegiance with what is wrong.

Further reading

Wilsonappeal; the website set up by friends and family of Genarlow Wilson.

My 5th. I know my rights! A website set up Genarlow's lawyers. It was inspired by his case, but the scope is a general non-profit site to help people know their rights in the USA.

5 comments:

Under "invalid claims", you stated:"Genarlow did nothing wrong." I disagree, so does Genarlow.

I have seen no quotes from Genarlow, that express this notion. From all news accounts it appears he is unrepentant and insistent that he did nothing wrong.

Perhaps, I missed the article where he admits his wrongdoing. It is possible that those who feel he got what he deserved feel this way because they see no regret on his part for the choices he made that night.

If anyone knows where one can find direct quotes of Genarlow expressing sorrow or regret for his acts it would be appreciated.

Also, on the issue of consent on the part of the girl, I disagree with your assessment. Yes, at that age young girls are sexually mature...in body, but not mind. In mind, this is still a little girl who was incapable of rendering a sensible decision to engage in a sexual act. Regardless of what the law states or intended to state this was a child, vice a young woman.

More importantly, this "crime" took place "in public". I would agree with those who view this as injustice had this taken place in privacy, in the context of some implied relationship between Genarlow and the girl.

Finally, if the girl and the mother feel so strong that a legal wrong has been committed, why not self-identify and hold a press-conference?? It's easy to make statements in the comfort of anonymity.

As far as I can tell in researching this matter, Genarlow denies that he is a child molestor, but acknowledges that the actions were wrong. The article Outrageous Injustice quotes Wilson as follows:He doesn't like the person he was back then, the cocky star athlete with the world as his yo-yo. When he thinks about the kid on that videotape, with a Pittsburgh Pirates hat cocked just so, he cringes.

"It's embarrassing to me," he says. "You see yourself. ... 'Man, I acted like that?' "

Whether people disagree with me or not on the matter of consent, it is a simple matter of fact that the law in Georgia, even at the time of the offense, recognized that there is such a thing as consensual sex with a minor when both participants are willing and of similar age.

Personally, I think that is trivially obvious; and I simply don't understand how any sensible person can fail to recognize it. It may be stupid, it may be wrong, it may be illegal; but it IS consensual, and basic justice demands that it be taken into account when dealing with acts between two young people who are close to each other in age.

The only reason Wilson failed to get that simple fact taken into account is that the girl gave him a blow job, rather than gave him sex. It was a loophole in the law.

The girl's mother HAS spoken up to say that this is wrong. The girl herself has also said the same, through her mother. She declines to be identified; and rightly so. It is appalling that she should have to do this and a travesty of basic natural justice that ANYONE would think the mother and girl should be expected to come out in public on this.

In an interview Tuesday, the girl's mother told The Atlanta newspaper that her daughter had told her the videotaped sex acts were consensual. The mother also said she regretted that she didn't ask prosecutors not to charge Wilson and four other boys at the party.

"She did not want any of this to happen," the mother said. "I felt like Douglas County was trying to make an example out of these boys."

The article goes on to describe how the mother subsequent was visited by the prosecutor. This whole thing is just compounding the wrong. She should not have been dragged into this again at all. It's not her responsibility to fix this, and the idea that she should have to expose herself and her daughter to the public eye in order to help pressure the prosecutors to do the right thing is appalling. They were not the ones who wanted prosecution in the first place; the girl and her mother have acknowledged from the start that the girl was the one who initiated the acts in question; and they think the punishment is excessive. Now leave them alone, in the name of all that is decent.

Putting the onus on them do go even further into the public debate just exposes this whole tawdry sham as having pretty much nothing to do with care or concern for the girl herself, and everything to do with vindictive insistence on antiquated and unjust laws to punish beyond all bounds of reason and decency.

Thanks for the visit; I hope my strong expression above is not offensive. But the girl and her mother have indeed spoken, and they should not be forced into the position of going into the limelight. In my view, it is part of the whole unfairness of this that they have come under scrutiny again. Leave them alone.

I understand the point you're making, with respect to the mother's role of responsibility for correcting this "implied" wrong.

However, since she made the choice to provide an opinion/comment to the media it seems from an ethical standpoint she should demonstrate more willingness to go before cameras and stand with Genarlow's mom, if in fact she feels both the "conviction" and "sentence" are in error? Otherwise, why not simply say "No Comment" and stand on the claim that this in not my responsibility?

I look at the title of your original article: "Law vs Ethics: the case of Genarlow Wilson" and I immediately focus on "Roles and Responsibilities", on a social level.

I have read and heard numerous characterizations of Genarlow as a bright/promising star athlete, with a future at an Ivy-League college. Then, I actually heard him speak during an interview and nearly fell out of my seat!

Let me be clear, he DID in fact sound like an otherwise normal young man and not a pedophile or rapist. However, he admitted that he was initially unaware of anything wrong in his actions that night. Underage teenagers in a motel with drugs/alcohol/and "public" sexual acts and he saw nothing wrong?

From there, I "saw" and "heard" his mother speak and immediately understood. His mom looks roughly 15 years his senior, and I've seen/heard NO mention of a father (or father-figure) representing Genarlow or the girl. The mother stated something to the effect that unlike commercials reminding people not to drink and drive or do drugs, there was nothing to warn Genarlow NOT to engage in sexual acts (in the manner in which he and his friends did). Once again, I nearly fell out of my seat. THIS IS THE ROLE AND RESPONSIBILITY OF THE PARENT(S) IN THE HOME!!!

Both these "children" have seemingly been raised by ill-prepared children themselves (Genarlow's mom and the girls mother).

Perhaps those who seek the truly help Genarlow should have considered this and been more honest in describing his character, as there are clear social flaws, with respect to "personal" responsibility for your actions (not just with him or the girl).

Society, as a whole in the U.S. needs a little "shock treatment", to remind them of individual AND social "Roles and Responsibilities". Clearly, Genarlow was never instructed (by his mom) "how" to "behave" and deal with the normal sexual urges that ALL children in this age-group experience. This is crystal-clear in the case of the "near-16yr old" girl who somehow thought it was OK to give 6 individual boys oral sex..."in a very public way"! Her mother obviously was unsuccessful in teaching her how to "behave" and deal with sexual urges (assuming she ever tried).

It is unfortunate that Genarlow's future appears bleak, but one could conclude that the sacrifice of his future may help focus attention on the lack of "proper" parenting in the home, which may have likely aided in avoiding this awful scenario, where there are no winners.

Advocates for Genarlow...and the girl should seek out professionals and begin crafting "Parenting Classes" and make them available to any/all parents. Such classes should be funded with state AND federal dollars. However, the REAL task is convincing people who have children that they NEED TO ATTEND. The other task is ensuring states and the federal government provide sufficient ACCESS, so people can attend on days and hours that are "workable" for the greater majority (as there is no way to please EVERYONE).

After years of fascination with the law, I applied and was accepted to an excellent law school. To say I was excited was an understatement, and as a mother of two young children, I took to my studies with fervency to better our lives.

After one year of learning US law where ironically my contracts professor regularly taught his course after smoking a joint (yes, I could tell), and having taken a comparative law course teaching differences between law in US versus other countries, I was completely disillusioned.

So I took the summer to volunteer at the Children's Court to see how and where I could make a different in the clogged arteries full of children 'in the system'.

I ended up quitting both endeavors.

My opinion ended up being that US court cases seem to be won and lost largely on personality, but this was in direct contrast to German law where the attorney is a paid civil servant and there is rarely a 'jury of peers'.

We are judgmental beings by nature, and we use our senses to take in whether we 'like' someone or not. Cases are decided, and then future cases are decided according to precedent. Perhaps just because the original defendant was pretty, or handsome, or ugly and unbelievable, or one jury member refused to believe or disbelieve a story.

And, as we know, an attorney's personality can also make or break a case for the jury, just by being a good enough salesman to sell the jury on his client's believability.Look at OJ for a good example here.

Personally, I think the law has very little business sticking its nose in to acts of sex between two consenting people. We are, after all, biologically driven to procreate! Drawing the line at 18 is merely to be able to weed out the pedophiles, and should be rightly used and recognized as such, not used to convict an 18 year old boy of criminal behavior with his younger girlfriend (which is not Genarlow's case, of course).

But to break down vaginal sex, oral sex and sodomy and prosecute independently for different acts with laws with different outcomes is something I don't understand. It's inane.Only vaginal sex has the power to create another being, and surely seems like the most powerful act two humans can undertake.

But to go to jail for ten years for receiving oral sex from a willing participant?

This is wrong in every way, shape and form.

And reading anonymous' thoughts on parenting has me a little riled. In my humble opinion, proper parenting is being realistic. It is realistic to know your teens will have sex, will experiment with some alcohol at a party, and perhaps other things as well. You can teach them something else all day long, but they, like adults, are continually balancing their reason and their passion.

Better to teach them to think on their feet, rather than what is 'right' and what is 'wrong'. Those definitions can be blurred simply by which country your feet happen to be standing on. Think Iran versus France, for example.

I have always kept lines of communication open with my children, have occasionally heard confessions that surprised even me. And on occasion, I've taken such information to other parents and to the school itself when I deemed it dangerous enough to hurt.

My kids are a far cry more intelligent, composed and realistic than their peers who are compressed in religiously and intellectually intolerant households. And I take some of the credit for being a realist, and not trying to deny their inner nature, but instead to help shape it according to what reason tells me is just.

Genarlow's case has become a huge topic in my household,as of late, both for the hypocrisy of the prosecution, and the opportunity I've taken to further instruct my own.

Why does sex make people react irrationally? We shag or brains out at night, and feign outrage at Janet Jackson's nipple. We allow our kids to watch murder and mayhem on TV, and then cover their eyes at the suggestion of sex. We allow stores to sell alcohol and tobacco that WILL kill tens of thousands of people each and every year, but not porn, that won't. I've noted many similar imbalances on my own blog.

Duae Quartunciae

About me

I've been active on the internet for many years in various guises. My real name is Chris Ho-Stuart, but I usually leave that for personal life off-line.
I use the pen-name "Sylas" on discussion boards; in particular Climate Physics Forums. I am also regular at Physics Forums.
I have a background in maths and computer science, and a long standing interest in science, especially where there is a public misunderstanding or rejection of basic discoveries we have made about the natural world.
I've been active in the creationism wars, and at present I am particularly interested in climate science.
I have recently started the Climate Physics Forums bulletin board as a way to help enable a safe and substantive space for discussion of climate science; I've given it here as my home page.